J. W. Crowdus Drug Co. v. Nichols

• Decision Date: 17 February 1917
• Docket Number: (No. 7681.)
• Citation: 194 S.W. 484
• Parties: J. W. CROWDUS DRUG CO. v. NICHOLS et al.
• Court: Texas Court of Appeals

194 S.W. 484

J. W. CROWDUS DRUG CO. v. NICHOLS et al.

(No. 7681.)

Court of Civil Appeals of Texas. Dallas.

February 17, 1917.

Rehearing Denied April 21, 1917.

Appeal from District Court, Dallas County; Kenneth Foree, Judge.

Action by the J. W. Crowdus Drug Company against S. W. Nichols and others. Judgment for defendants, and plaintiff appeals. Reversed and rendered.

Seay & Seay and Ralph W. Malone, all of Dallas, for appellant. Edward P. Dougherty and Dabney & Townsend, all of Dallas, for appellees.

RASBURY, J.

Appellant sued appellees Nichols and American Surety Company to recover $650 paid appellee Nichols on his undertaking to repair and make absolutely dry the basement to appellant's storehouse, performance of which was guaranteed by the Title Guaranty & Surety Company, whose obligation had been reinsured or assumed by appellee American Surety Company, and with which it was alleged appellee Nichols had failed to comply. Appellees' defense was that appellant denied appellee Nichols a reasonable time in which to complete the repairs and refused him entry into the basement for that purpose. Further, that appellant, due to the fact that it had permitted appellee Nichols to re-enter the basement after all parties had assumed that the repairs had been successfully accomplished, and perform additional work thereon and expend money in that behalf, was estopped from recovering the full amount paid appellee Nichols, but was in law entitled only to recover such amount, less the sum expended after such re-entry.

There was trial by jury to whom the court submitted but one issue, to wit:

"Was the defendant Nichols prevented by the plaintiff from having a reasonable time for the completion of the work?"

The jury answered the issue so submitted in the affirmative. Upon such answer, judgment was entered that appellant take nothing by its suit and that the appellees recover their costs.

The substance of the undisputed facts and those deducible from the verdict of the jury essential to the disposition of the issues tendered on appeal are these: The contract between appellant and appellee Nichols was in the form of a letter addressed by appellee Nichols to appellant dated July 15, 1913, which, omitting address and signature, is as follows:

"I will guarantee that my material and workmanship will make your basement absolutely dry for a period of two years and all work will be done to the satisfaction of owners. I am furnishing a bond for the full amount and it will be in effect for one year. The contract for this work is eight hundred and fifty dollars ($850.00). Payments to be made as follows: Two hundred dollars on July 19th, three hundred dollars on July 26th, and one hundred and fifty dollars when work is completed, the balance of two hundred dollars to be paid ninety days after completion."

Appellees Nichols and the surety company executed their joint and several obligations in the sum of $850, the condition of which was to save appellant harmless from any pecuniary loss resulting from the breach of any of the terms, covenants, and conditions of appellee Nichols' contract with appellant for a period of one year. Appellee Nichols entered upon performance of his contract July 14, 1913. On July 18, 1913, he collected $200 named in the contract as payable July 19, 1913. On July 26, 1913, he collected the $300 payable on that date by the contract. On August 2, 1913, he collected the $150 payable by the contract when the work was completed. The remainder of the contract price was to be paid within 90 days after completion of the contract. When the $150 was paid on August 2, 1913, both appellee Nichols and appellant believed that the work was completed in such manner as to make the basement absolutely dry, and appellee claimed to have "finished" the work at that time, and testified in detail concerning the character and amount of the work done, but says that he notified appellant at the time that it was possible that leaks would subsequently develop. It seems that at that time there was in fact a leak discharging about five gallons of water in two minutes. However, appellee, about three weeks subsequent to the time he thought the work was finished, on a telephone call from appellant went into the basement and found a few leaks had developed. Subsequently, the basement continuing to leak, appellee worked intermittently on the basement from August 2, 1913, to approximately April 30, 1914, the dates as shown by an itemized statement kept by appellee being September 14, 1913, October 5, 1913, November 11, 1913, December 6, 1913, January 22, 23, and 24, 1914, April 4, to May 9, 1914. In addition to the expense incurred by appellee for the work prior to August 2, 1913, he actually expended in said basement, in a further attempt to repair same so as to make it absolutely dry, the sum of $258. It also appears from the testimony of appellee Nichols that in making such repairs in leaky basements it is impossible to tell when the work is finished, since the stopping of a series of leaks increases the pressure against the weakest portion of the wall or floor and causes same to break at another point, which in turn must be repaired, and that on such jobs it required from two to three weeks for the new leaks to develop. When appellee finished his last work on the basement and had "convinced" himself that the basement was absolutely dry, he received notice from appellant on May 15, 1914, that it had sued him on his contract. While the record fails to show when the suit was filed, the notice appellee refers to was appellant's letter of that date stating that it had given the surety company formal notice of its intention to hold the surety company on its bond for appellee's alleged failure to comply with his contract, and the conclusion cannot be drawn therefrom that it was notice of the filing of suit as appellee claims. Subsequent to the foregoing notice, appellee made no attempt to further repair the basement. However, in the following June or July appellee and his attorney and a representative of the surety company and appellant's attorney were at appellant's office for the purpose of adjusting the matter of the threatened suit. While there, appellee's attorney asked appellant's president, J. T. Berry, if he was willing for appellee to then undertake the work of making the basement absolutely dry. Berry declined. Appellee was willing to again take up the work. The basement was not absolutely dry at that time. Appellee Nichols, after testifying that he was familiar with the time required to waterproof a basement like appellant's, further testified that "it would take about a year to waterproof" appellant's basement.

Appellant's first assignment of error complains of the court's action in overruling the general demurrer leveled by appellant against the sufficiency of the pleading upon which appellee went to trial; but, in view of the conclusion we have reached upon a consideration of the second assignment of error, it will not be necessary to consider said assignment or others that follow.

The second assignment complains of the action of the court in submitting to the jury for their determination whether...